Why Mean Blockbots Probably Aren't Defamatory, With Two Caveats

Recently some Twitter users have asserted that they are being defamed by Twitter "block bots."

It's easy to block people manually on Twitter, unless you want to block a whole lot of them. Various cultural and political conflicts online have led some users to develop blockbots, which are lists to which you can subscribe (to oversimplify the process) to mass-block everyone on the list. Some lists are created by methodology (like automatically blocking people who follow certain Twitter users affiliated with "GamerGate") and some, like BlockBot, are curated by individuals who choose who goes on the list and why.

Some folks don't like how they are characterized by these lists. BlockBot targets complain of being characterized by mostly anonymous and unaccountable strangers as "racists" or "transphobes" or "rape apologists." Some argue that merely being on a blocklist means they are being characterized as a harasser or affiliated with harassers.

Dissenters may have a point that the lists are unfair or unprincipled. I wouldn't use one myself.

But they almost certainly aren't libel.

Fact, Not Opinion, Is Potentially Defamatory

You're probably heard this multiple different ways: opinion can't be defamatory. Satire isn't defamation. Insults aren't defamation. Jokes are not defamation.

All of these rules derive from the same core idea: only statements that can reasonably be interpreted as asserting false statements of fact can be defamation.

So, for instance, a parody advertisement depicting Jerry Falwell has having drunken sex with his mother in an outhouse was protected speech because it could not "reasonably be understood as describing actual facts about [Falwell] or actual events in which [he] participated." "Rhetorical hyperbole" and "vigorous epithets" are not defamatory because they can't be understood as asserting specific facts.

Moreover, the question is not whether some hypothetical ignoramus would construe a statement to be factual. The question is whether a reader familiar with the context and the speaker and target would conclude that the statement is factual. So when WorldNetDaily sued Esquire over a parody about a silly birther book being withdrawn and pulped, the D.C. Circuit pointed out that it was analyzing the statement from the point of view of its target audience:

To determine whether Esquire’s statements could reasonably be understood as stating or implying actual facts about Farah and Corsi and, if so, whether those statements were verifiable and were reasonably capable of defamatory meaning, the “publication must be taken as a whole, and in the sense in which it would be understood by the readers to whom it was addressed.” Afro-American Publ’g Co. v. Jaffe, 366 F.2d 649, 655 (D.C. Cir. 1966) (en banc). “[T]he First Amendment demands” that the court assess the disputed statements “in their proper context.” Weyrich, 235 F.3d at 625. Context is critical because “it is in part the settings of the speech in question that makes their . . . nature apparent, and which helps determine the way in which the intended audience will receive them.” Moldea II, 22 F.3d at 314. “Context” includes not only the immediate context of the disputed statements, but also the type of publication, the genre of writing, and the publication’s history of similar works. See Letter Carriers, 418 U.S. at 284–86; Moldea II, 22 F.3d at 314–15.

So: if your complaint is "someone could stumble upon the BlockBot, see that I am described as a 'sexist cis-normative pro-frakking shitlord,' and draw conclusions about me," then they are applying the wrong test: the right test is whether someone who knows about the BlockBot and its context would understand the BlockBot to be making specific statements of fact, as opposed to elbow-throwing ideological eructations.1

Furthermore, the place of publication is important to the analysis. A growing and increasingly uniform body of law suggests that statements on the internet are less likely to be taken as literally true than statements elsewhere. This shouldn't surprise anyone who has been on the internet.

Next, the type of epithet figures into the fact vs. opinion analysis. Some sorts of accusations — such as that of racism — are so inherently subjective that more likely to be interpreted as opinion than fact.

Finally, the language surrounding the blockbots' labels make them less likely to be interpreted as statements of fact. When a writer uses vivid and figurative language, insults, or other less-than-professional terms, courts lean towards classifying the statements as opinions rather than facts. The very purple prose complained of suggests that the labels are opinions, not statements of fact.

If you are thinking "well, who knows how a jury would decide," the question of whether a challenged statement is fact or opinion is a question of law for the court.

Taken together, these doctrines make it extremely unlikely that it is defamatory to be put on a blocklist or characterized offensively on such a list. Such characterizations would be seen by their intended audience — and thereby by the courts — as partisan political rhetoric not premised on any specific facts and not susceptible to any specific factual analysis. Arguments to the contrary appear to be either based on the law of foreign jurisdictions or not based on specific legal principles.

Caveat Number One: I speak here of the rule of law, not the rule of feels. I understand many people feel as though BlockBot designations are defamatory. So they have that going for them, which is nice.

Caveat Number Two: I speak here of the laws of the United States. I do not opine about whether Blockbot designations may be defamatory under the laws of the United Kingdom. Although the U.K. has nominally reformed its libel laws recently, it remains a place where 15-year-olds are arrested for being dicks on Twitter, where adults are arrested for peaceful symbolic protests, and where old atheists are threatened with arrest for mild trash-talking of organized religion. The U.K. has less a system of jurisprudence designed to protect free expression and more an elaborate legal platform for mood swings. Fortunately any U.K. speech-related judgment will likely be unenforceable in the United States under the SPEECH Act.2

  1. Another good example is Sekrist v. Harkin. There a staffer sued for defamation based on statements in Tom Harkin's political press release about him. The court explained:

    The literary context of the press release also supports a finding that the challenged statements are Candidate Harkin's opinion, rather than "fact." The "literary context" factor includes the type of forum or "social context" in which the statement was made, the category of publication, its style of writing, and the intended audience. Janklow, 788 F.2d at 1302-03. The forum or social context in this case is, as we have said, a political campaign, in which one would expect to hear a great deal of opinion concerning the performance of the incumbent Senator. The category of publication is a press release from the Senator's challenger. Suffice it to say that a campaign press release is not a research monograph; such a release is at least as likely to signal political opinion as a newspaper editorial or political cartoon.

     

  2. Perhaps, like me, you find it odd that people who say they oppose thin-skinnedness and support free speech are resorting to government help from a censorious system to protect themselves from mean words.  

Last 5 posts by Ken White

Comments

  1. Grenaid says

    Correct me if I'm wrong, but I thought the problem was that people living in the UK were sending data out to the US, and that produced problems with the Data Protection act.

    http://matthewhopkinsnews.com/?p=1195

    See also:

    "For his part, your Inquisitor is very grateful to wise Stefano Lucatello, Senior Partner of International Law Firm Kobalt Law LLP, who gave a second opinion and advised pro-bono that I should drop the libel claim due to the costs risk and focus on the Data Protection aspect as it can be used to similar effect much more cheaply."

    http://matthewhopkinsnews.com/?p=1193

  2. Andrew Gray says

    I remember a lot of these same claims coming up in the spam war a decade or so ago, when some of the worst spammers tried to sue Spamhaus for defamation because of Spamhaus' listing on spammer blocklists.

  3. W. H. Heydt says

    My favorite piece of "political opinion" is a small (1/2" long?) hollow lead pig my mother had. It was a campaign item from the 1880s. You looked through the pig and there was a picture of the opposing candidate labeled "Our Next President". It is worth knowing that the phrase "In a pig's eye" is the Bowdlerized version of the original phrase to determine which end of the pig to look through.

  4. James Russell says

    I think I'm getting added to a block list today because I follow Mark Kern (one of the original creators of World of Warcraft) on twitter, and he rustled some jimmies online, so all his followers are now persona non grata.

    What a great time to be alive. Never thought I would miss usenet groups.

  5. Benanov says

    Meh, I've been on the "methodology" blocklist for a while. It's made a few purchasing decisions a lot easier. (Block me, you don't get my money.)

    At least usenet has an easier killfile syntax.

  6. Shadow says

    On legal grounds, if someone were to lose a job or could show they were in some way damaged financially by being on the list, would that change the legal footing at all or would it still fall under statements of opinion over statements of fact.

  7. says

    @Shadow: The fact that someone reacted that way wouldn't change the analysis. If I start a popular list called "In My Opinion This People Are Shitlords," and some employer decides not to hire people on that list, that doesn't make it actionable.

  8. Richard Gadsden says

    @Ken, I suppose – depending on the circumstance – it might be actionable against the employer for using a list that had no connection to ability to do the job (if, for example, it was indirect discrimination because all the people on the list were, for example, black women).

    Regardless, that would still present no cause for action against the list compiler.

    The only way I could see that working would be if you could demonstrate conspiracy (like union agitator blacklists in certain sectors).

  9. Kilroy says

    Damn it, there goes my class-action against Ken and Patrick on behalf of everyone blocked by @Popehat.

  10. says

    @TheBlockBot is breaking UK data protection laws because it is .. "Sending data outside of the UK" … Oh yes, by sending a tweet, on Twitter.com's servers, in the US. Which is then picked up by the Twitter API, running on servers in the US, and then saved on a server … You guessed it, in the US. I rang the UK Information Commission and they told me I am not a data controller and I do not have to register as one. The act does not apply to me -> I am the person who hosts the servers, in the US I might add(!), for the block bot… For clarities sake I only host the service, others run it.

  11. Mikee says

    Getting myself onto some of those block lists is almost motivation enough for me to actually make a twitter account so I can send twits to other twits. But then I think about that 20 seconds it would take to register the account and decide I'd rather play some video games instead.

  12. Matthew Cline says

    Tangential question: why is it called "BlockBot" if it's manually maintained by humans? Does "Bot", in the context of Twitter, mean "block list"?

  13. says

    The bot part is how it works for the subscribers to the list, Matthew. They sign up, and certain classes shitlords are from that point on automatically blocked for them.

  14. Shadow says

    @Ken Thanks for the analysis on this, there are so few people on either side who look at this with a level head so it's difficult as a layperson to get any real info.

  15. Ryan says

    @Shadow: If someone genuinely said something sexist, wouldn't you want to be able to boycott them?

  16. says

    I’m interested to see this opinion from Ken, and would welcome some legal acumen being trained upon the quality of the arguments allegedly originating from a torturer of women who has been deceased for over three hundred years — I refer to the obvious axe-grinding by someone who goes around on the Internet by the name Matthew Hopkins, and whom it seems is still apparently writing letters penned in Green Ink. (Despite being dead, it seems he might have updated his technology, and now uses yellow highlighter.)

  17. Mike Kelly says

    I can see why internet comments are more likely to be considered hyperbole, but does it affect the judgement if the person who labelled Dawkins as "childabuseapologist" actually believed that to be the case and wanted to prevent Dawkins from selling books etc. by convincing others of that?

  18. Aquillion says

    Perhaps, like me, you find it odd that people who say they oppose thin-skinnedness and support free speech are resorting to government help from a censorious system to protect themselves from mean words.

    I don't think it's a surprise (and I remember you talked about this before, unsure of whether they were parodies or serious.)

    I think the issue is that the Internet makes it easy for conflict-minded people to spend all their time arguing with The Enemy — whoever they've decided their ideological opponents are. On top of this, it makes it easy for them to highlight the very worst of their opponents (and there are plenty of "haha look what the stupid people on the other side think" blogs out there to feed that desire.) And spending all this time drudging through the very worst of their opponents has an impact on the way they think and argue themselves — they start to view those excesses as normal, or they start saying to themselves "well, if THE ENEMY uses this strategy, I should be fine turning it around and using it right back at them, since I'm at least not as bad as they are and I'm using it for a good cause."

    Spending all their time looking at the very worst of their enemies causes people to stop examining themselves. Worse, through continuous exposure to it, it makes many people adopt the very worst of the tactics and discourse used by their enemies (because they're not as bad as that crazy person they saw on the blog or reddit, right?) As a result, you see people loudly declaring that they're against censorship and that they support free speech, while using some of the stupidest, most censorious tactics of the very worst people on the Internet.

    It's also why many of the people who are so eager to mock others for being so easily offended seem to have such thin skins themselves — they feel that they've learned that this is how you win, right? I think that in some cases it started out with people pretending to be offended, people who had spent a lot of time on moron-highlighting blogs and internalized this sort of point-scoring as something that actually works, but through arguing over it, they rapidly worked themselves up and became genuinely offended.

    I mean, there's nothing wrong with being offended; if someone insults them, well, yes, being offended is normal. Part of free speech is the right to offend people; part of it is the right to raise issues when people offend you. But they can't get offended at things like this and then say how everyone else just needs to be thicker-skinned, that just doesn't work.

  19. says

    The block bot originated from the atheist community, a community that supposedly values truth, reason and evidence.
    This is the context here.
    You would expect that these people at least avoid emotive language and back up their claims with facts, but they don't.

  20. says

    . . . the question of whether a challenged statement is fact or opinion is a question of law for the court.

    It seems to me exactly the sort of thing for which you'd ask a jury how a member of the relevant community would reasonably understand it.

  21. Scythian says

    If I was the plaintiff's attorney, I'd make sure that the court knows that the BlockBot markets itself as a tool to block "the worst trolls and harassers", not as a political organization. It was even featured on the BBC as such. It's very obvious that the "social context" they were trying to create is that of a legitimate anti-harassment tool. You and I both know that they're actually targeting political opponents, but isn't that why there's a controversy?

  22. Jacques Cuze says

    So this is not necessarily a question about the block bot, but more about your post and how it relates to what I, a layman, have heard (and likely misunderstand) about "defamation per se".

    Um, disclosure, you've blocked me on twitter, I don't know why and which I do consider a loss, and would appreciate being unblocked, but I am blocked there, and yet I'd still appreciate a repy here.

    So I was added (again) to the blockbot with this tweet:

    https://twitter.com/vex0rian/status/511939324284534784

    @theblockbot #storify +JacquesCuze #libel http://theblockbot.com/https://twitter.com/JacquesCuze/status/511938704395751424

    What actually is libel per se, and could/would a placement on a blocklist with a hashtag of "libel" itself be libel per se?

    This also perhaps relates to the Vivek Wadhwa, (not a lawyer) NPR incident when
    Wadhwa tweeted this:

    > @kevinmeyers @manymanywords @tldr Can't believe a @npr affiliate commiteed libel and knowingly published lies–without verification

    Which an EFF lawyer Nick Cardozo responded to by saying Wadhwa's tweet was a legal threat

    > @wadhwa @DanielleMorrill https://twitter.com/wadhwa/status/564111865928630273 … is a legal threat.

    I am curious if you consider
    + the hashtag #libel a possible libel per se,
    + Wadhwa's tweet a legal threat

    Personally (not a lawyer) I don't find Wadhwa's tweet a legal threat, but if an EFF lawyer says it was, I have to wonder why vexorian's blockbot tweet is not libel per se.

    Regarding note 2, about what you find odd, it's similarly odd that Richard Stallman who opposes copyright relies on copyright to enforce the GPL. It may also be odd that Ron Paul is said to have helped his constituents obtain government funding for their projects or needs when in general he opposes gov't funding in many many areas and would routinely vote against it. (Or that anarchists will vote for the anarchist.) These guys work with what they got.

  23. PonyAdvocate says

    I have read many commentaries on this subject similar to this one, and having now read this one, I am no more enlightened than I have been after reading the others. This is one of those areas of law that may be clear to legal practitioners, but which seems to me to be governed by language and ideas imported from Cloud Cuckoo Land. I think that the vagueness here is not the fault of the writer, however, but is due to the nature of the subject itself.

    To take one of the many problematic statements:

    Some sorts of accusations — such as that of racism — are so inherently subjective that more likely to be interpreted as opinion than fact. [sic]

    I think there are some missing words here, but I interpret Mr. White to be saying that an accusation of racism is so clearly a matter of opinion that it is virtually impossible to make a claim of defamation in response to it. Well, perhaps, and perhaps not. Let us posit two men, John Doe and Richard Roe. John Doe is proudly a virulent racist. His social circle consists entirely of persons who have similar attitudes, and he has spent much of his free time dressed up in the regalia of the Ku Klux Klan and parading up and down the sidewalk in front of the homes of black families who live in town, shouting "Nigger, go home!" Richard Roe has adopted a houseful of needy children of various ethnicities, has worked to great acclaim for years at an organization that promotes racial justice, and has spent most of his free time doing volunteer work for other such organizations. Suppose some enemy of both men puts up an ad on each of two billboards, one accusing John Doe of being a "nigger-lover", and the other accusing Richard Roe of being a "racist". Now, everyone understands what each of these terms means, everyone understands the import of the accusations, and it is obvious to everyone that each accusation is patently untrue. Furthermore, it is clear that the accusations bring the respective accused parties into disrepute in the respective social milieus they inhabit. Doe and Roe each sues the sponsor of the ads for defamation. It seems to me that both the billboard accusations are testable assertions of fact, and each claim of defamation can be adjudicated.

    The problem, I think, is that the language used to express the law and legal concepts in this area is vague, or at least malleable. There are statements that are in all circumstances opinions ("You're ugly"), there are statements that are in all circumstances assertions of fact ("You weigh, to the nearest pound, 532 pounds"), and there is a vast domain of statements that can be opinions or assertions of fact, depending on the circumstances ("You're a racist", "You're a coward"). Based on Mr. White's commentary, it's not clear to me that the legal system is equipped to deal with such intermediate statements in a manner that is not arbitrary or capricious. What is an opinion and what is an assertion of fact seems less clear-cut than the lawyers and judges would like to believe, and attempts at rigorous, universally applicable definition tend to lead one into the territory of pinhead-dancing angels.

  24. MisterFister says

    @TheBasementBoy: The block bot originated from the atheist community, a community that supposedly values truth, reason and evidence. This is the context here.

    Extremely wrong. The context is that this BlockBot is on Twitter, that charges nothing to sign up, offers essentially no platform-based moderation beyond its own ToS, and that there do exist people divided into groups based on differing opinion that have been known to communicate en masse. I tend to think that BlockBot is simply another manifestation of this.

    @Anton Sherwood: . . . the question of whether a challenged statement is fact or opinion is a question of law for the court.

    It seems to me exactly the sort of thing for which you'd ask a jury how a member of the relevant community would reasonably understand it.

    Nope.

    @Scythian: If I was the plaintiff's attorney, … You and I both know that they're actually targeting political opponents, but isn't that why there's a controversy?

    I see no connection between these two items. What's your point?

  25. sorrykb says

    PonyAdvocate wrote:

    John Doe is proudly a virulent racist. His social circle consists entirely of persons who have similar attitudes, and he has spent much of his free time dressed up in the regalia of the Ku Klux Klan and parading up and down the sidewalk…

    Once upon a time, I was with a cousin of mine at an unavoidable family gathering. Almost his every other word was a grossly offensive racial slur, against African Americans, Asian-Americans, and pretty much anyone who didn't look and act like him. My sister and I finally got over our shock (We didn't really know him.) and asked him why he was so racist. His response? "I'm not racist. It's the n*****s that's racist."


    I'd bet my next month's wages that your John Doe would say he's not a racist.

  26. sorrykb says

    PonyAdvocate (why must you bring ponies into this?) wrote:

    Based on Mr. White's commentary, it's not clear to me that the legal system is equipped to deal with such intermediate statements in a manner that is not arbitrary or capricious. What is an opinion and what is an assertion of fact seems less clear-cut than the lawyers and judges would like to believe, and attempts at rigorous, universally applicable definition tend to lead one into the territory of pinhead-dancing angels.

    Isn't that kind of the point, though? That U.S. law overall in these situations has realized the inherent challenges in attempting to make judgments about these sort of statements, and so generally considers them protected?

  27. MisterFister says

    @PonyAdvocate: Based on Mr. White's commentary, it's not clear to me that the legal system is equipped to deal with such intermediate statements in a manner that is not arbitrary or capricious. What is an opinion and what is an assertion of fact seems less clear-cut than the lawyers and judges would like to believe, and attempts at rigorous, universally applicable definition tend to lead one into the territory of pinhead-dancing angels.

    While this is true, I think this is the very essence of First Amendment (US) law specifically and free speech notions generally. The First Amendment specifically enumerates not just speech, but religion, the press, assembly, and petitioning the government. In all, these constitute a set of "rights of conscience," as President Jefferson characterized the religion portion during his time in office.

    Understand, First Amendment law is predicated largely on a "marketplace of ideas." This means that it is not the "right" of the party SAYING the opinion — it's the right of everyone else to HEAR it. My right to know who is on the BlockBot list, and why, outweighs the rights of someone already on the list to get off of that list, until and unless it can be proved that the person publishing / maintaining the list lied, or said something that they should have known was a lie.

    I can accuse a certain US-presidential candidate from the 1990s as a fuckwit and a moron. Could we disagree as to that assertion? Sure. Can it be proven demonstrably true or false? No. Am I crude or curmudgeonly for saying so? Probably.

    I can say on Yelp that a specific eatery "smelled of elderberries" and "the cashier was so spiteful, she licked the condiment dispensers when I wasn't looking." Is that an actionable statement of fact? Generally, with such invective, I'd think not, especially given my aggregated understanding of Mr. White's other writings on this topic. The gist of my example here is "Don't patronize this establishment." I'd have to say something that amounts to the equivalent of "I am in possession of evidence of willful health code violations" to rise to actual defamation.

  28. Achillea says

    Let me see if I understand this correctly. There is a glorified chat program called Twitter, which has devolved into something resembling what you'd get if you spiked the juice boxes of a bunch of psychopathic kindergarteners with meth. Bunches of these tweaked-out twits have been running around hurling crazed invective at one another like poo-flinging primates for quite some time, but now some of them are suddenly upset at being called nasty names?

    It seems to me what has their knickers in a twist halfway up their colons isn't being slagged on, it's that the opposing monkeys have come up with a way to get in the last and-the-horse-you-rode-in-on word. This 'defamation' nonsense is just trying to put a better face on kicking the door and screaming someone make them listen to meeeeee.

  29. Scythian says

    @MisterFister You seem to be in advocacy mode while I'm being informative. The Blockbot creator, James Billingham, stated on the BBC that it blocks known trolls and harassers. This is the "social context" they were marketing. According to Mr. White's defense, they'll have to argue to a judge that "well, we were just kidding. Everybody knows we target political opponents". Good luck with that argument, but I disagree with Mr. White that it's "extremely unlikely" that what he did would be considered defamation.

  30. MisterFister says

    @Scythian Ok, we disagree. Yet, my disagreement with you is "advocacy mode," and your disagreement with me is "being informative."

    Thank you for wishing me luck.

  31. Scythian says

    @MisterFister I don't mean to step on your toes if you're advocating on behalf of the BlockBot creators, but the point is moot since Billingham is in the UK and this article is addresses US law. However, I don't want people relying on this advice to create a blockbot of their own that libels thousands of people. It won't turn out well for all parties involved.

  32. Shadow says

    @ryan Absolutely not, if the only thing they ever said was racist, I would certainly not engage with them, if someone made a single racist comment, it would be well worth while to engage with them and find out the reasoning to see if they could be convinced otherwise. What I would never do is block thousands of people because of a) who they follow on twitter or b)because some overly sensitive person thinks they said something racist once.

  33. King Squirrel says

    As an exiled Nigerian prince who really does want to give you money, enhance your genitals and show you how to make millions working from home with one simple trick, I often feel the victim of scurrilous and mendacious libel.

  34. says

    The Blockbot creator, James Billingham, stated on the BBC that it blocks known trolls and harassers.

    That was over 2 years ago, it was also referring to level1 alone, since then level1 has changed description and use. Amusingly some people tried to sue then as they claimed they were damaged by the BBC endorsing the bot. That might have had some merit given now the only attention given @TheBlockBot is people complaining about being on it. However the BBC's lawyers made it quite clear there was zero chance of being sued, I saw their official advice. There is nothing defamatory about being put on a list regardless of the descriptions, it is at the discretion of the person adding them.

    It is perfectly possible for the people adding to the bot to say something libellous in doing so, "@TheBlockBot" is not liable for that. I am not liable for that any more than the person who owns Reddit is liable for the probably hundreds of libellous comments a day. If something is said that is libellous then it will not appear on theblockbot.com website. It will be in a libellous tweet and the person sending it might get sued, which happens from time to time, but I seriously doubt it will ever happen in regard to the block bot as the people running it are not daft.

    In regard to the Data Protection Act "action", I see the GamerGate "law student" has posted some baloney about the servers being "moved abroad" to avoid his legal action. So it appears GamerGate has a nice comforting lie to explain why they are dropping that line of inquiry.

  35. L says

    It's also why many of the people who are so eager to mock others for being so easily offended seem to have such thin skins themselves — they feel that they've learned that this is how you win, right? I think that in some cases it started out with people pretending to be offended, people who had spent a lot of time on moron-highlighting blogs and internalized this sort of point-scoring as something that actually works, but through arguing over it, they rapidly worked themselves up and became genuinely offended.

    Could be. Or they could, per Occam's Razor, be plain hypocrites.

    Let us posit two men, John Doe and Richard Roe

    All right. For any general legal proposition, someone can carefully construct a hypothetical that presents, or might present, an exception to that proposition. That really does nothing to attack the general proposition — especially in this case, where the general proposition is based in part on now-prevailing social norms, and the hypothetical is extraordinarily improbable under now-prevailing social norms.

  36. says

    @Jacques Cuze

    1. "Defamation per se" is commonly misused. It refers to a category of statements defined by state law – for instance, accusation that you've been convicted of a crime — that don't require proof of damages. That is, if you prove someone said it about you, and it was false, and they had the requisite mental state (malice if you're a public figure, etc.), then you can get nominal damages without any proof that you really suffered damages. It does not mean "that statement is automatically defamation and I don't have to prove anything."

    2. Being accused of libel is not defamation per se in any jurisdiction of which I am aware — that is, it is not in the statutorily defined category of types of libel as to which you don't have to prove damages.

    3. In this context — a Tweet, on Twitter, about a notoriously subjective blockbot — accusing you of libel is almost certainly a statement of opinion, not fact, and therefore not potentially defamatory. That's especially true because the tweet provides a link to the basis for the opinion — it cites your tweet as the reason it is accusing you of defamation. That's an opinion based on disclosed facts, and it's absolutely protected. IT may be a stupid opinion, but it's clearly an opinion.

    4. I thought W was making a legal threat, but later he backpedaled and said he was just being descriptive. Whatever. I think that people who throw around libel or slander and later say "I wasn't threatening" are being passive-aggressive at best.

  37. Castaigne says

    I'm just amused that people are losing their shit on being included in a Twitter version of a distributed USENET kill file. People did not shit the bed like this back in the kill file days that I remember; you didn't see Terri Tickle or Serdar Argic raise proclamations of defamation.

    Kids these days.

  38. Deadly Laigrek says

    You know, Ken, I love reading your posts on this blog. It's nice, every once in a while, to listen to someone who knows what the hell they're talking about and who thinks their statements through rather than just posting knee-jerk garbage.

  39. Aquillion says

    Regarding note 2, about what you find odd, it's similarly odd that Richard Stallman who opposes copyright relies on copyright to enforce the GPL.

    Stallman isn't universally opposed to all forms of copyright, he simply feels that the current way it's applied is far too heavy-handed. The GPL is a way of creating a more acceptable form (one that allows reuse and redistribution.)

    The block bot originated from the atheist community, a community that supposedly values truth, reason and evidence. This is the context here.

    Valuing truth, reason, and evidence doesn't mean you have to debate everyone who walks in the door. (That's the same argument that anti-evolutionist people, anti-vaxxers, and similar cranks use when they're not taken seriously; it's still just as silly here.) It's entirely compatible with a desire for truth, reason, and evidence for them to decide that it's not worth their time to talk to you (that you're not going to give them any of those things) and to block you on Twitter or wherever; after all, nobody has unlimited free time to debate everyone who takes issue with them.

    You seem to be in advocacy mode while I'm being informative.

    I think that this is probably part of why you seem so confused here. Everyone has their own beliefs that color how they see and interpret the world; nobody is just purely reasonable or purely a source of untainted information. I think it's pretty obvious that you are in full-on aggressive advocacy mode in this thread yourself (cobbling together whatever arguments you feel will let you attack the blockbot's creator); but since you don't see your own prejudices and just see yourself as being "reasonable" because you're stating stuff you believe to be true, it feels to you like the refusal to listen to you is a sign that the people you consider your political opponents lack a commitment to truth, reason, and evidence. The problem is that what you've chosen to believe is tainted by what you desire to be true and by the political positions you're advocating in this thread.

    Because you're like this, the particular groups of atheists and freethinkers and oddballs who you're advocating against here have judged (and this is, of course, a fundimentally subjective judgment) that what you are contributing to the discussion is not constructive; they've judged that your arguments are not being made in good faith, that you are (in internet parlance) a troll. I don't know if I agree, but as Mr. White said above, the fact that this is a subjective judgment means that they can't be sued for libel, regardless of your (if I might venture an opinion) not-so-informative advocacy that they can be, above.

  40. Guy who looks things up says

    @Jacques Cuze

    Where did you get the idea that Richard Stallman opposes copyright?

    Whoever told you that is an ignoramus at best and you can tell them I have reasonable grounds for saying so.

  41. Scythian says

    @Aquillion Wow. All those words and you still didn't once address my argument. I would love to have you as my opposing council. I'd eat you alive.

  42. David C says

    There is nothing defamatory about being put on a list regardless of the descriptions, it is at the discretion of the person adding them.

    There's no way that can be correct. If a newspaper put out a list of the "10 Most Wanted Murderers", and an editor snuck his ex-wife (who he knows is not a murderer) onto the list, that would absolutely be defamation.

    But the block list isn't accusing people of murder. It may accuse them of harassment, but in this context it's not accusing them of the *crime* of harassment, but rather of the informal definition.

    For those who say that accusing someone of libel is libel, that seems like you could get into a weird logic loop where two people accuse each other of libel and are simultaneously both right and wrong.

  43. L says

    @Aquillion Wow. All those words and you still didn't once address my argument. I would love to have you as my opposing council. I'd eat you alive.

    Have you considered that your argument might not be worth addressing?

    In any event, thanks for the smile. It's fun to see the lawyer (or, I suspect, law student) equivalent of the "Internet Tough Guy." I hope "I would love to have you as my opposing council [sic]" somehow reaches "meme" status.

  44. Scythian says

    @L Yeah, my argument isn't worth addressing, but my comment about being informative warrants a lengthy paragraph of psychobabble. Whatever you say, bud.

  45. L says

    psychobabble

    I accept as true your representation that you don't understand Aquillion's comments, but I disagree with you about the cause. I think you should reread them until you understand them. You might end up disagreeing with them, but I think you'll benefit from the effort you put in.

  46. Scythian says

    @L My Argument: "Your honor, when considering the social context, please keep in mind that the creator marketed this as a legitimate anti-harassment tool on the BBC." @Aquillion's Argument: "Your honor, he's just trolling you."

  47. MisterFister says

    @Aquillion's Argument: "Your honor, he's just trolling you."

    That's a very valid response. It's also a gentle one.

  48. says

    Look, the very "SJW" qualities that "anti-SJWs" complain about are what make this stuff non-defamatory.

    Critics commonly say that "SJWs" throw around "racist" "sexist" "homophobic" "harassing" and so on capriciously and without rational cause. I think that they are right as to some who could be described as "SJWs." But this is widely understood in the social context of the internet. The internet is a culture where you can get called a "rape apologist" by suggesting that people accused of rape are entitled to due process, or by questioning a (objectively highly questionable) specific accusation, like that in the Rolling Stone story. That's why calling me a "rape apologist" on the internet is opinion — because, in the context of the internet (and, say, academia), it's widely recognized that it may be unprincipled bullshit without logical grounds.

  49. L says

    None of Aquillion's comments were directed at a judge, real or imaginary, and it's weird that you are acting like they were. The counter to your argument is set out in the OP. Nobody's under any obligation to quote it back at you or "lose" some imaginary "case" against you.

  50. Argentina Orange says

    The block bot originated from the atheist community, a community that supposedly values truth, reason and evidence.

    Actually, it originated from the Atheism+ community, which values none of those things.

  51. ColdInTheEast says

    "The question is whether a reader familiar with the context and the speaker and target would conclude that the statement is factual."

    This, I think, is where you lost the plot. For example, who would believe anything that the National Enquirer writes? That defense didn't work too well for them when sued by Carol Burnett.

    While you (and I) may see the BlockBot is a big lark, it certainly wasn't portrayed that way on the BBC. Instead, the BlockBot was portrayed as a veritable savior in a piece about harassment and death threats faced by women on the Internet.

    "[The BlockBot] may accuse them of harassment, but in this context it's not accusing them of the *crime* of harassment, but rather of the informal definition."

    Are we to simply assume that the BlockBot labels people "harassers" in the colloquial – as opposed to legal sense – because this is the Internet?

  52. Guy who looks things up says

    @Scythian

    If I was the plaintiff's attorney, I'd make sure that the court knows that the BlockBot markets itself as a tool to block "the worst trolls and harassers", not as a political organization.

    So? It's just as legitimate to block democrats, republicans and members of rent-is-too-damn-high party as it is to block anal wombat molesters.

  53. says

    While I agree with you mostly, the list is a persons interpretation of what another person said and then a label was added. Surely in that way, i.e. application of a label, then libel is an option. The reason I would like to see this happen (although no case will in all likelihood be won) is just to wake people the hell up.

  54. Noah Callaway says

    @iamanatheistandthisiswhy

    Surely in that way, i.e. application of a label, then libel is an option.

    If the label being applied is an opinion, then libel is not really an option.

  55. says

    Agreed, but I think that is also where this gets blurry. I mean can you call someone a rape apologist without solid facts even if it is an opinion? I am asking out of interest as my skin is thicker than most so I do not really mind if I make a blocklist. I just think the people that use it need a wake up call to reality.

  56. sorrykb says

    @iamanatheistandthisiswhy: The reality is that people can disagree with you (or anyone), and criticize you,and call you names, and say a great many things about you that you might disagree with or think are unfair… and they could decide they don't want to talk to you or hear from you… and tell the world they don't want to talk to you or hear from you… without it being libel.

  57. bja009 says

    @iamanatheistandthisiswhy

    can you call someone a rape apologist without solid facts even if it is an opinion?

    Yes. By definition (US law, here), an opinion is not libel. So for example, if I were to opine that your implied support of suppressing the expression of mean opinions about other people is a step on the road towards George Orwell's nightmares, that would not be libel. But maybe you didn't mean to express that opinion. (And maybe Orwell's nightmares are different from what I imagine them to be.)

    Keep in mind that under this same doctrine, you're perfectly free to opine that I am a shitlord et cetera, and the people who read both our opinions can then form and express their own opinions, or just ignore us. Marketplace of Ideas! Whereas if we were not allowed to express mean opinions about each other, someone would have to find a way to shut us both up [clark post about state monopoly on violence goes here]

  58. says

    I am not saying you cannot disagree or agree. I am saying can you call someone a rapist/racist/rape apologist if that is just your opinion. The reason I ask is that it is a serious allegation that can have major knock on effects. For example you could lose real life business (not internet traffic) if someone called you a homophobe.

  59. says

    I am not saying stop opinions, but as stated in another reply. If someone calls you a homophobe (even in their opinion) this can have real life knock on effects such as losing business or losing a job etc.

  60. says

    @MisterFister:

    My right to know who is on the BlockBot list, and why, […]

    I'm not sure that argument works in this context. Isn't the whole point of the complaint that the list is allegedly misleading people as to the reasons why people are added to it?

    outweighs the rights of someone already on the list to get off of that list, until and unless it can be proved that the person publishing / maintaining the list lied

    That doesn't sound too hard, actually. If I've understood what Ken is saying correctly (and perhaps I haven't!) then it isn't enough to show that the reasons on the list are lies, it is also necessary to show that they count as statements of fact rather than statements of opinion.

    Basically, what it boils down to is that you're allowed to lie about your opinion?

  61. says

    Basically, what it boils down to is that you’re allowed to lie about your opinion?

    You can't imagine that the legislators of any land would make such a course of action illegal, surely.

  62. MDW says

    @Scythian
    I don't understand how them saying they are a tool to block "the worst trolls and harassers" is supposed to help the plaintiffs, Surely the defense would just point out that "the worst trolls and harassers" is just much a protected opinion as the rest of labels at issue? I haven't seen the BBC interview but I find it hard to believe they ever claimed that they identified the "worst" in some objective scientific manner. Even the mechanical "block if you follow the bad guys" starts with an opinion about who the bad guys are.

    @ iamanatheistandthisiswhy
    Just because an opinion can have bad consequences if someone who holds it decides to fire/boycott you does not stop it from being an opinion. There are very few protections against losing a job in US law if you lose it for any reason other than being in a "protected class".

  63. stillnotking says

    That's why calling me a "rape apologist" on the internet is opinion — because, in the context of the internet (and, say, academia), it's widely recognized that it may be unprincipled bullshit without logical grounds.

    In other words, SJWs have succeeded in turning "rape apologist" into an accusation with no moral force whatsoever. They're well on their way to doing the same with "white supremacist", "homophobe", "transphobe", "misogynist", etc.

    I hope the Aryan Nation remembers to write them a nice thank-you note.

  64. Dragoness Eclectic says

    @Castaigne:

    Ye gods, I remember Terri Tickle! That harassing moron with the tickle fetish tried to pull his shit on alt.gothic. He didn't fare well… apparently a lot of sysadmins in those days liked to wear black and go clubbing. He was last heard of on alt.gothic whining about what mean bullies we were…

  65. Aquillion says

    My Argument: "Your honor, when considering the social context, please keep in mind that the creator marketed this as a legitimate anti-harassment tool on the BBC." @Aquillion's Argument: "Your honor, he's just trolling you."

    I addressed your 'argument', although I hesitate to dignify it with that categorization. Specifically, as far as I can tell, your entire spin on the subject was based on this statement:

    The Blockbot creator, James Billingham, stated on the BBC that it blocks known trolls and harassers.

    But as was established right at the start, 'troll' is a subjective category. That's why I've said:

    Because you're like this, the particular groups of atheists and freethinkers and oddballs who you're advocating against here have judged (and this is, of course, a fundimentally subjective judgment) that what you are contributing to the discussion is not constructive; they've judged that your arguments are not being made in good faith, that you are (in internet parlance) a troll.

    Your argument is that James Billingham does not have the right to call you a troll by putting you in his list; in fact, you are arguing that the full force of law should be devoted to preventing James Billingham from calling you a troll. You know perfectly well, I assume, that calling someone a troll on the internet is a subjective statement (especially, as in this case, where the accusation is backed up by a link that he says shows you trolling.) But you're advocating against him anyway, because he hurt your feelings; and because you're not even willing to admit that your feelings have been hurt, you're trying to cast your angry, argument-free diatribes against him as just, you know, stating random unrelated facts. He has deeply offended you, and you are lashing out in emotional fury demanding that he be silenced.

    I am not calling you a troll. My argument is that Billingham considers you a troll, as is his right; and that your attempts to get the government to censor his opinion on this are ridiculous.

  66. Robert Q says

    Hi Ken – wanted to get your thought on the latest SCOTUS decision in Omnicare:

    Though the decision isn't directly related to defamation, the case does revolve around the issue of statements of opinion being treated as untrue statements of fact. From my reading, the court concludes that statements of opinion cannot be "false", but that there is an implicit statement of fact in every opinion that (1) the stater genuinely believes the opinion, and (2) the opinion stater made reasonable inquiries before arriving at that opinion, unless the statement sets out what inquiries were actually made.

    My question is whether this decision, by your understanding, is consistent with defamation law on the fact/opinion distinction? I gather that (2) is somewhat particular to the securities disclosure regime, where it is not expected that securities disclosure would contain spontaneous or flippant statements of opinion. However, as I understand from previous posts by you, opinions that imply an undisclosed false fact could still be potentially defamatory, which seems somewhat analogous to implying reasonable inquiry as required by (2), but I could be wrong.

    For bonus points, are there any First Amendment concerns that a person making opinion statements in this disclosure will have this implied fact of reasonable inquiry, and therefore liability, attached to their statement? I suppose if the analysis is the same as the undisclosed fact opinion situation, then maybe not, but if it's not analogous, what is the justification for the lesser First Amendment protection? Is is the same considerations that would apply in common law fraudulent misrepresentation claims outside of the statutory regulations?

  67. says

    @Robert Q: Omnicare does involve fact vs. opinion, but in a completely different context. It would make sense if they were based on the same cites, but they aren't. Omnicare relies entirely on the body of law concerning civil and criminal penalties for false statements as opposed to the body of defamation law.

    The approach isn't similar to defamation law because of the different obligations in play. There's a specific obligation to be truthful in SEC filings. There's no general obligation to be truthful when you talk about people — there's only the limits defamation law places.

    Generally courts have rejected the concept that there is a First Amendment dimension to truthfulness restrictions, whether in SEC filings or statements to the government. The why on that is tedious, but basically the idea is that it's an act as well as an utterance, and the government's interest is not content-based but related to truth.

  68. says

    I am not calling you a troll. My argument is that Billingham considers you a troll, as is his right; and that your attempts to get the government to censor his opinion on this are ridiculous.

    Thanks for the defence of free speech, something sorely missed in all this. I personally think @TheBlockBot is a much better way of helping people filter out people they don't want to interact with than the current methods. It is even *better* for free speech, given people might well report those accounts if they are not blocked. Leading to account suspensions, something I do not agree with on a free speech basis and harassment basis, suspending them just makes them create 10 new socks and up the abuse 10x. This new Twitter filter is looking pretty good as an approach!

    But I should point out again that I am not in charge of @TheBlockBot. I stepped down a year ago as an admin and six months ago as a blocker, so @MAMelby, @Xanthe_Cat and @VanguardVivian are the bosses. I'm the server techy. So my opinions on who is or is not a troll don't have much impact any more :(

  69. Robert Q says

    @Ken White:

    Thanks for the clarification. I must say it is a weird distinction to say that opinions in general get greater protection than opinion statements made to the government / at the request of the government like SEC filings, and that the principles come from entirely separate areas of law, but I guess it makes some sense. That the prohibition is, ultimately, on actual false statements seems to be compatible with other truth-based restrictions (like perjury, defamation, fraud, and so on. It was mostly the "let's read in some facts to this opinion statement and then hold them accountable for them" and the implicit duty to research one's opinions first that triggered my Popehat alarm (not to be confused with the Popehat Signal, of course), and just my general surprise that a SCOTUS decision all about facts vs. opinions didn't make reference to an entire body of law on the subject.

  70. Shieldfoss says

    @Robert Q:

    This is not American jurisprudence, but locally there is also a requirement that statements you make to the government are true – "I believe X is probably true" is taken as isomorph to "X is true." If you have not checked the state of X, you should report that you do not know the answer to their inquiry because if your guess is wrong, you did not make a good-faith error, you committed fraud. There are exceptions to this – there are occasions where guesses are acceptable, but in those cases it should be very clear from the context that you are guessing, and you should state why you believe that guess rather than something else – e.g. "In my judgement, it is probably that X is true. I base this statement on the content of Report Y as interpreted by my consultant Z."

  71. Lagaya1 says

    Not on topic, but your website is loading really slowly the last 3 or 4 days. Have some changes been made recently to cause this? Thought you should know.

  72. says

    Oh, I agree it's not defamatory. That said, since I am listed on BlockBot myself, it's a clear part of what's wrong with various portions of America online, in this case, the New New Left.

    Remember, folks, there's just one letter's difference between SJW and JW.

  73. Ryan says

    @Ken , you already use cloudflare, what you need to do next it get a cloudflare service provider that supports railgun. Railgun would reduce load, improving performance for a given amount of money for any web host you choose (cloudflares caches a greater percentage of a webpage)

    https://www.cloudflare.com/hosting-partners

    CloudFlare Optimized Partners offer all the benefits of a CloudFlare Certified Partner, plus Railgun. Railgun ensures that the connection between an origin server and the CloudFlare network is as fast as possible.

  74. GeoffreyK says

    Remember, folks, there's just one letter's difference between SJW and JW.

    Perhaps… ja wohl?
    Or… Ken's guitar-shredding evil step-brother, Jack White?
    Wait! Don't tell me…

    *gasp*

    Not…*gulp*… Jehovah's Witnesses!?

  75. Yon Anony Mouse says

    Man, what ever happened to blocking people your own damn self? Can we sue them for being lazy and shiftless?

  76. says

    This first peer-distributed shared-killfile was no-doubt created within weeks of the first bulletin board system being set up on an ARPANet server. It's hardly a new phenomenon just because the Blockbot hooks into the Twitter API in order to operate.

  77. Pickwick says

    It's so easy to open new accounts, though. People who've been targeted for harassment have had to play whack-a-troll for years, which is ridiculous. There is a sizable contingent of people who have nothing in their lives that they value more than inflicting pain or frustration over the internet; adding to the tools ordinary users have to reduce the power of those harassers can only improve the general user experience.

    I understand that it's possible that the occasional person will end up on a block-list by mistake, and it could certainly be distressing to be lumped in unjustly with the loathsome. But that's a much smaller-scale problem than currently exists.

  78. Careless says

    I can't actually believe that a lot of people thought that this plausibly could be libel or defamation.

  79. says

    Geoffrey, yep. The "martyr complex" of both is where I see the greatest point of similarity. Picture back of hand affixed to forehead of typical SJW.

  80. says

    The issue that I have with The Block Bot, as opposed to less problematic things like the GamerGate Block List, is that James Billingham (aka oolon) and his co-admins has not just set up a system of private blocks, but has accompanied this by recklessly untruthful statements about people, at one point using the platform of BBC. To what degree this borders on defamation is an open question, but insofar as these statements include direct accusations of criminal activity (eg, rape, harassment), his statements at least border on defamation.

    I'm on the fence on this, as I'm a free speech maximalist and I loathe the too-expansive concept of hate speech which is being used in many countries to shut down expression of political ideas those with access to power happen not to like. On the other hand, there are two categories I think are beyond the pale: 1) direct incitement to violence, and 2) knowingly false accusations of criminal activity. There really needs to be a way of immediate legal relief against the latter, and right now, defamation law is the tool we have. Unfortunately, it's a beyond-imperfect and problematic way of dealing with that problem, one that's prone to abuse, especially in countries like the UK which have a very broad concept of defamation.

    In any event, without turning to the big stick of the law, I think some social pressure should be put on those who run TBB to stop behaving like loose cannons, and either take their statements private or be scrupulously honest in their public statements.

  81. says

    Iamcurious — Indeed, and as someone who's on BlockBot because I've been falsely accused of harassment by an SJW who has zero sense of humor, a high degree of self-righteousness, and who simply cannot accept that Sweden might have "good" reasons to want its hands on Assange for extradition (namely, Sweden's extensive participation in CIA renditions), everything you say here is true.

  82. ColdInTheEast says

    oolon: "Thanks for the defence of free speech, something sorely missed in all this."

    For those unfamiliar with him prior to this, you should note that oolon regularly mocks the concept of free speech. Now that he had need of it, he pretends it's a concept he holds dear.

    oolon: "[TBB] is even *better* for free speech, given people might well report those accounts if they are not blocked. Leading to account suspensions, something I do not agree with on a free speech basis…"

    One again, oolon is pulling one over on you guys. He regularly encouraged mass reporting, leafing to any number of suspensions. Yet he also decries "dog piling" which is exactly what he encouraged.

    oolon: "I'm not in charge of [TBB] … I'm a serve techy."

    Another sleight of hand by oolon. If he was brave enough to keep his twitter public, you'd see the remarkable similarity between his tone and that of @TheBlockBot.

  83. GeoffreyK says

    Geoffrey, yep. The "martyr complex" of both is where I see the greatest point of similarity. Picture back of hand affixed to forehead of typical SJW.

    Wait… I guessed correctly? You really did mean Jehovah's Witnesses? But… but… I was being sarcastic… damn you, textual interfaces!

    My unintentionally accurate guess has misled you into considering me a sympathetic ear. My sincere apologies; I have no fundamental bone to pick with either SJW's or JW's.

  84. Robert says

    I use block-bots. It's a little harmless fun for a few dollars. And it stops annoyance tweets from the twitter crazy who don't see mine.

    I block-botted lists of anti-Semities, "Occupy Wall Streeters", and so-called "Palestinians" (who ended up in the list because they engage, uninvited with people like me who are simply posting links to Golan Heights vacation photos, etc.)

  85. Robert says

    "sexist cis-normative pro-frakking shitlord"

    I now have a new bio on twitter! (I'm also anti-Fat Acceptance. I'm normal-sized and I think "Health at Any Size" is a dangerous movement. Fatties hate me, but none of them are too lazy to get up, waddle over, and do anything about it.)

  86. Robert says

    "sexist cis-normative pro-frakking shitlord"

    I now have a new bio on twitter! (I'm also anti-Fat Acceptance. I'm normal-sized and I think "Health at Any Size" is a dangerous movement. Fatties hate me, but all of them are too lazy to get up, waddle over, and do anything about it.)

  87. says

    I had heard the SJW block bot doesn't just block the tweets of listed users, but also flags them without warning, potentially leading to termination of their accounts. Is this true? It would seem the most objectionable aspect of this if it is.

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